Variance in the name of one of the jurors.

the jury process, or in any return thereupon, so as upon examination it appears to be the same person who was meant to be returned." This settled the point as to surnames, but left the Christian name as before. But it has been since held in Roe v. Devys, (1) that though the Statute 21 Jac. I, extended only to surnames, Christian names were amendable at common law, as being on misprisions of the clerk.

It obtained as a general rule, therefore, as well before as since the Statute of James, that when the juror who serves has been summoned by his right name, and is the same person returned and sworn, although by a mistaken name, the irregularity is amendable, and will not be allowed to prevail either on motion. in arrest of judgment, or for a new trial. Thus in Wrey v. Thorn.(2) This was an action for breaking and entering plaintiff's close, &c. Defendant justified in.right of a way—plaintiff replied extra viam; whereon issue was joined, and a special jury and view applied for and granted. The name of Henry Luppincott of Alverdiscott, Esq., was taken out of the freeholder's book, and he stood as a juryman, and was returned among the other jurors, in the panel annexed to the writ of venire facias; *and was summoned, and did attend both on the view and [*30] at the trial. After a verdict for the plaintiff on the merits of the cause, defendant moved to set aside the verdict, Mr. Luppincott's Christian name being Harry, and not Henry; and produced an affidavit thereon from two persons. Per Cur"This affidavit ought not to be received in a motion for a new trial. The record and all the jury process are uniform. Mr. Luppincott is the real person returned, and intended to be a juror, and there is no pretence that the verdict is unjust. It is commonly understood, that Henry and Harry are the same name: or that Harry is the same name as Henry corruptly spelled. The rule to show cause why the verdict should not be set aside was discharged."

(1) Cro. Car. 563. (2) Barnes, 454.

Variance in the name of one of the jurors.

And in the Countess of Rutland's case.(1) In debt on a bond of £500, brought by the Countess of Rutland, the defendant pleaded to issue, and it was found for the plaintiff. And now in arrest of judgment it was showed, that one Robert Moore was returned on the venire facias, and so named in the distress, but in the panel before the justices of Nisi Prius, by misprision he was named Robert Mawre, and so on the postea: upon which it was said, that a stranger who was not returned, was sworn and gave a verdict; for which cause judgment should not be given. But it was resolved by the whole court, that if it could appear by examination, that his right name is Robert Moore, so that he is well named in the panel on the venire facias, and also that he is the same man who was returned and was sworn, there, the postea should be amended. But if a juror be misnamed, in the panel of venire facias, though he be well named in the subsequent process, it cannot be amended.

So in Codwell's case. (2) In an appeal of mayhem between John Codwell, plaintiff, and Thomas Parker, defendant, [*31] *the parties came to issue, and the jury found for the plaintiff and now it was moved in arrest of judgment, that there was a variance between the panel of the venire facias, and the distringas and postea, in the name of one of the jury, who appeared and gave a verdict: for in the panel of the venire facias he was named Palus Cheal, and in the distringas and postea he was named Paulus Cheale; and because the name of the juror was misnamed in the venire facias, and especially in his Christian name, therefore the judgment was arrested; but if he had been well named in the panel of the venire facias, and misnamed in the distringas or in the postea, there, on examination, it should be amended.

So in Cotton's case.(3) Action for words. In the venire facias a juror was returned by the name of J. S. of Abbotsan, and in

(1) 5 Co. 42.

(2) Ibid.

Variance in the name of one of the jurors.

the distringas he was returned by the name of J. S. of Abbasan: and it was awarded to be amended; so in the same term between Mortimer and Oger, a juror in the venire facias was named De Hust, and in the distringas De Hurst, and this was alleged in arrest of judgment, and awarded good, and the plaintiff had judg

ment.

So in Hugo v. Payne,(1) where Tippet, the true name, was returned on the venire; but, in the habeas corpora and distringas, he was named Typper; yet, if he be sworn and try the issue by his right name, it shall be amended: and in the case of Floyd v. Bethell.(2) In the distringas the juror was Ap Pell, and one Ap Bell was sworn, and held that it could not be amended by the court after the death of the sheriff': for it cannot be intended to be the same man, for they are different names in Wales where this trial was; but that if the sheriff who made the return had been living, he might have amended it. Several more *cases are there cited, showing that where the mistake is [*32] in the surname, but if right in the return to the venire, the court would amend it.

So in Roe v. Devys.(3) In the return to the venire a juryman was named Samuel, and so in the distringas; but, in the panel annexed, he was called Daniel, and sworn by that name as appears by the record, and gave a verdict for the plaintiff: though this was not within the statute, yet it appearing upon the examination of the juror himself that he was the person returned, and that his right name was Samuel, and that there was no other person of that name in the parish, and by the examination of the sheriff, of his clerk, that it was the misprision of the clerk, who, though he had the distringas before him, wrote Daniel for Samuel in the panel; and the juror likewise swearing that there being a great noise in the court when he was sworn, he answered supposing himself to be called by his right name of Samuel, the

(1) Danv. Abr. 330.

(2) Ibid. 331.

(3) Cro. Car. 563.

Where a juror has been challenged and set aside, and afterwards sworn, &c.

record was ordered to be amended, and the judgment was not stayed.

In England, the correctness of the rule has been tested even in capital cases, since Hill and Yates, and "The case of the juryman" and therefore may be regarded as settled.

In the state of New York, mistakes of this kind are cured by the statute. It is provided that "When a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed nor shall the judgment upon such verdict, or any judg ment upon confession, default, nihil dicit or non sum informatus be reversed, impaired, or in any way affected by reason of a mistake in the name of any juror or officer."(1) And should a question arise upon this defect, it is further provided "The omis

sions, imperfections, defects and variances in the prece[*33] ding section *enumerated, and all others of the like nature,

not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error."(2)

IV. Where a juror has been challenged and set aside, and afterwards sworn as a talesman.

And it has been held, that if one of the regular panel be challenged and set aside, and afterwards be sworn upon the jury as a talesman, especially if the party were ignorant of the fact, a new trial will be granted.

In Parker v. Thornton, (3) after a verdict for the plaintiff, a new trial was granted, because one Hooper, who was challenged

(1) 2 R. S. 425, secs. 7, 11; superseded by sec. 176 of the Code.

(2) 2 R. S. 425, sec. 8; superseded by sec. 173 of the N. Y. Code of Procedure.

Where a juror has been challenged and set aside, and afterwards sworn, &c.

upon the principal panel, and the challenge allowed, was afterwards sworn upon the jury as a talesman by the name of Hook; although it was insisted upon, by the counsel for the plaintiff, that the verdict was given to the satisfaction of the judge who tried the cause.

So where the cause of challenge is not known.(1) As in Kennedy v. Williams.(2) In this case the objection could not be taken, because the facts were not known till after the verdict. A sufficient number of jurors did not appear, and talesmen were summoned and returned, and sat on the trial, who had not been drawn according to the statute, and a new trial was directed.

But it would seem if the party objecting were not misled, as he probably was in the case from Lord Raymond, by the misnomer, but neglected his challenge, the verdict would not be disturbed.(3) In Jordan v. Meredith,(4) where a talesman. was sworn on the jury after being struck off the list of [*34] special jurors, the court held that the objection came too late. "The defendant should have challenged the juror before he was sworn. He has slipped his time by postponing his objection till this period. If he has been guilty of inattention he alone should suffer for it. And so is the current of authorities in the books. Motion for a new trial denied."(5)

In Haskell v. Becket.(6) The petitioner prayed for a review of a suit heretofore decided between him and the respondent, in which he represented that the verdict was improperly returned against him, because one of the jurors did not stand impartial between the parties, but had, before the trial, formed and expressed a decided opinion against the petitioner's right to recover;

(1) 6 Bac. Abr. 661.

(2) 2 Nott & M'Cord, 79.

(3) Vide 1 Vent. 30; Style, 129.

(4) 3 Yeates, 318.

(5) It has been so ruled in South Carolina, in a capital case. 2 Bay, 150.

(6) 3 Greenl. 92.